330 F.

2d 997

Charles T. CORAL, Appellant,

v.
Gavino GONSE, Appellee.
No. 9139.

United States Court of Appeals Fourth Circuit.

Argued Nov. 6, 1963.
Decided April 15, 1964.

Leonard B. Sachs, Norfolk, Va. (Kanter, Kanter & Sachs, Norfolk Va., on
the brief), for appellant.
Terry H. Davis, Jr., and Harry N. Gustin, Norfolk, Va. (Taylor, Gustin,
Harris & Furniss, Norfolk, Va., on the brief), for appellee.
Before HAYNSWORTH and BRYAN, Circuit Judges, and BUTZNER,
District judge.
HAYNSWORTH, Circuit Judge:

When, in this diversity action, it appeared that the defendant was a resident of
Virginia, the District Court declined to permit the plaintiff to renounce his
allegation that he, the plaintiff, was a resident of Virginia. The District Judge
thereupon dismissed the action for want of diversity. We affirm that dismissal.

Plaintiff and defendant are shipmates in the United States Navy. Each was born
in the Philippines; each is a naturalized American citizen, the defendant having
obtained his citizenship in Norfolk, Virginia, while the plaintiff obtained his in
Hawaii. Each maintains a home in Norfolk, Virginia, for his wife and children,
and for himself when he is there. At the time of the accident, the two shipmates
were headquartered in or out of Charleston, South Carolina. When the
automobile accident occurred, they were en route together in the plaintiff's
automobile driving from Charleston to Norfolk for the purpose of spending the
weekend with their families. At the plaintiff's request, the defendant was
driving at the time of the accident, and the plaintiff seeks damages for the
injuries he suffered.

In his complaint, the plaintiff alleged that he was a citizen and a resident of
Virginia, while the defendant was alleged to have been a citizen and resident of
some state other than Virginia.

At a preliminary hearing on the jurisdictional question, as a result of a pleading

denying diversity of citizenship, strong evidence was adduced that the
defendant, in fact, is a citizen and resident of Virginia. The plaintiff did not
undertake to question that evidence or counter it in any way. Instead, for the
first time, he took the position that he was not a resident of Virginia, but a
resident of the Philippines. Though he is married to a Caucasian wife, was
naturalized in Hawaii, and has been in the service of the United States Navy for
more than eighteen years, he offered to prove that he had always intended to
return to the Philippines upon his retirement from the Navy, that return to the
Philippines upon retirement was still his intention, and that he had always
regarded himself as a resident of the Philippines. He sought leave to amend the
complaint to allege that he was a resident of the Philippines and that the
defendant was a resident of Virginia.

Rule 15 of the Federal Rules of Civil Procedure provides a liberal practice in

the allowance of amendments to formal pleadings. Under Rule 15(a), a
pleading may be once amended as of course before a responsive pleading is
filed. Defective jurisdictional averments are readily correctible in the light of
proof even after the proofs are in.

This is an extraordinary situation, however, presenting an unusual question not

readily answered by a mechanical application of Rule 15 or other principles
calling generally for a liberal allowance for formal amendments to pleadings.
For the purpose of founding the jurisdiction of the court, the plaintiff had
solemnly and formally asserted that he was not only a resident of Virginia but a
citizen of Virginia. The averment is in the nature of a judicial admission, for it
was a formal declaration of fact peculiarly within his own knowledge. He
might have been unaware of some legal principle affecting an ultimate
determination of his citizenship, or of his legal residency, but he could not have
been unaware of the underlying facts. Under these circumstances, after having
been confronted with almost conclusive proof that the defendant was a resident
of the same state of which he claimed to be a resident, he ought not lightly to be
allowed to reverse his field and take an inconsistent position.

We do not decide that the allegation was a judicial admission foreclosing a

subsequent action with an inconsistent allegation.1 The District Court did not
hold the allegation to be a judicial admission. It granted the motion to dismiss
and denied leave to amend as an exercise of its discretion when it appeared that

the motion to amend, made at the conclusion of a hearing which, otherwise,

would require the granting of the motion to dismiss, came too late. It
recognized that the plaintiff could commence a new action in the District Court,
embarrassed by his earlier inconsistent allegation only because of its
impeaching effect. We affirm on that basis.
8

Considering the nature of the averment, its probable truth even in the light of
the present claim, the fact that this averment was not at issue, and the fact that
there was no suggestion of mistake until after the defendant's status as a
resident of Virginia was established and the motion to dismiss was about to be
granted, we think it was well within the District Court's discretion to refuse to
hear the plaintiff's proffered testimony and to dismiss the action for want of
diversity of citizenship.

Affirmed.

Of course, even a judicial admission does not always foreclose a different

position. If the District Court, convinced that an honest mistake had been made,
the original allegation was untrue and that justice required relief, it may, in its
discretion, relieve the party of its otherwise binding consequence. See 9
Wigmore on Evidence, 2588, et seq